Citation Nr: 0005190
Decision Date: 02/28/00 Archive Date: 03/07/00
DOCKET NO. 98-16 189 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Whether a timely Substantive Appeal was received on the
issue of entitlement to service connection for residuals of
an injury to the left hand or forearm (claimed as a burn scar
to the forearm).
2. Entitlement to an initial evaluation in excess of 10
percent for residuals of a head injury.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARINGS ON APPEAL
Appellant, A.H., and S.S.
ATTORNEY FOR THE BOARD
K.L. Salas, Associate Counsel
INTRODUCTION
The veteran had active military service from October 1942 to
January 1946.
This appeal arose from April 1998 and October 1998 rating
decisions by the Department of Veterans Affairs (VA) Regional
Office (RO) in North Little Rock, Arkansas. In April 1998,
the RO determined that the veteran had not filed well-
grounded claims of entitlement to service connection for
"residuals of head injury" and a "burn scar to the
forearm."
In October 1998 entitlement to service connection was granted
for "residuals of head injury" with assignment of a 10
percent evaluation effective July 28, 1997. As the benefit
sought on appeal (entitlement to service connection) was
granted in full, that issue is therefore considered to be
resolved. The veteran did file a timely notice of
disagreement (NOD) on the issue of the initial 10 percent
evaluation assigned for residuals of a head injury.
The appellant and his wife and daughter provided testimony
before a Hearing Officer at a hearing at the RO in September
1998, a transcript of which has been associated with the
claims file. These witnesses also provided testimony before
a Member of the Board of Veterans' Appeals (Board) at a
hearing at the RO in October 1999, a transcript of which has
been associated with the claims file.
The case has been forwarded to the Board for appellate
review.
With respect to the veteran's claim of entitlement to service
connection for residuals of an injury to the left hand or
forearm (claimed as a burn scar to the forearm), the issue on
the title page has been rephrased to reflect, as is discussed
in more detail below, the question of whether a timely
Substantive Appeal has been received is raised by the record
and must be addressed in the first instance.
With respect to the veteran's claim of entitlement to an
initial evaluation in excess of 10 percent for residuals of a
head injury, the Board notes that at issue is a claim of
entitlement to a higher initial evaluation, rather than an
increased rating claim. This distinction was drawn in the
case of Fenderson v. West, 12 Vet. App. 119 (1999), in which
it was held that in appeals from an initial assignment of a
disability evaluation, ratings may be "staged" (i.e.,
different ratings may be assigned for different periods of
time). The issue on the title page of this decision has been
amended accordingly.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
The veteran's claim of entitlement to service connection for
residuals of an injury to the left hand or forearm (claimed
as a burn scar to the forearm) was denied in April 1998. The
RO notified him of the rating decision by letter dated April
27, 1998. He submitted a VA Form 9, Appeal to Board of
Veterans' Appeals, in the nature of an NOD in August 1998.
A statement of the case (SOC) was issued in November 1998.
Thereafter it does not appear that any formal Substantive
Appeal was filed. In October 1999, the veteran's
representative submitted a VA Form 646, Statement of
Accredited Representative in Appealed Case, listing the
issues on appeal as including entitlement to service
connection for "residuals of burn scars to the forearm."
The veteran or his representative must file an NOD from a
determination of the agency of original jurisdiction within
one year of the date of notification that determination.
38 C.F.R. § 20.302(a) (1999). A Substantive Appeal must be
filed within 60 days from the date that the agency of
original jurisdiction mails the SOC to the appellant, or
within the remainder of the one-year period from the date of
mailing of the notification of the determination being
appealed, whichever period ends later. 38 C.F.R. § 20.302(b)
(1999).
The VA General Counsel has issued an opinion that the Board
may address in the first instance whether a timely
Substantive Appeal has been submitted. However before
dismissing an appeal for lack of a timely Substantive Appeal
the Board should provide adequate procedural protections.
VAOPGCPREC 09-99.
The Court has held that before the Board addresses a question
that has not been considered by the RO, it must consider
whether the veteran has been given adequate notice of the
need to submit evidence or argument, an opportunity to submit
such evidence or argument, an opportunity to address the
question at a hearing, and whether or not the claimant has
been prejudiced by being denied those opportunities. Bernard
v. Brown, 4 Vet. App. 384 (1993).
It is indisputable that the veteran has not been given an
opportunity to present evidence and argument on the issue of
whether a timely Substantive Appeal has been submitted on the
issue of entitlement to service connection for residuals of
an injury to the left hand or forearm (claimed as a burn scar
to the forearm) and he has not been afforded an opportunity
to address the matter at a hearing. He would clearly suffer
prejudice by being denied those opportunities. Therefore a
remand to the RO is necessary as a matter of due process.
Turning to the claim of entitlement to an initial evaluation
in excess of 10 percent for residuals of a head injury, the
matter with which the veteran initially disagreed was the
denial of entitlement to service connection. Service
connection was ultimately granted. The veteran submitted a
timely NOD from the initial 10 percent evaluation assigned.
However, the claims folder does not contain an SOC on the
issue of entitlement to an initial evaluation in excess of 10
percent for residuals of a head injury.
When an NOD is filed, failure to issue an SOC is a procedural
defect requiring a remand. Godfrey v. Brown, 7 Vet. App. 398
(1995); Manlincon v. West, 12 Vet. App. 238 (1999).
Accordingly a remand to the RO is necessary as a matter of
due process. However, an appeal shall be returned to the
Board only if perfected through filing of a timely
Substantive Appeal. Smallwood v. Brown, 10 Vet. App. 93
(1997).
To ensure full compliance with due process requirements, the
Board is deferring adjudication of the issues on appeal
pending a remand of the case to the RO for further
development as follows:
1. The appellant has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the RO. Kutscherousky v. West, 12
Vet. App. 369 (1999).
2. An SOC should be provided on the
issue of entitlement to an initial
evaluation in excess of 10 percent for
residuals of a head injury. The RO
should give consideration to all
applicable laws, regulations, and cases
to include whether staging of ratings is
appropriate pursuant to Fenderson v.
West, 12 Vet. App. 119 (1999). The
veteran should be provided with a
statement of procedural and appellate
rights for completing an appeal to the
Board.
3. The RO should determine whether a
timely Substantive Appeal was filed with
respect to the issue of entitlement to
service connection for residuals of an
injury to the left hand or forearm
(claimed as a burn scar to the forearm).
The veteran should be given an
opportunity to submit evidence and
argument on this issue.
If the benefits requested on appeal, for which a timely NOD
has been filed, are not granted to the veteran's
satisfaction, the RO should issue a Supplemental Statement of
the Case (SSOC). Thereafter, the case should be returned to
the Board for appellate review only if otherwise in order.
By this remand, the Board intimates no opinion as to any
final outcome warranted. No action is required of the
veteran until he is notified by the RO.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).